Cybertelecom Federal Internet Law & Policy An Educational Project

Children's Internet Protection Act CIPA

In the 106th Congress, Sen. John McCain introduced S 97 Children's Internet Protection Act.  The Act was considered by the Senate Commerce Committee and voted favorably to the floor of the Senate for vote.  However, believing that there was insufficient support for passage, the proposed legislation was never called for a vote.  As the 106th Congress came to a close in the Fall of 2000, it became clear that Congress and President Clinton had reached an impasse on the Federal Budget.  The target date of October 2000 for Congressional adjournment came and went.  Congress finally recessed for the election, determining that it would have to return for a lame duck session to resolve the budget issues.  In December, as the Courts wrangled with the results of the 2000 election, Congress resumed its wrangling of the budget.  People were aware and concerned about what riders and amendments might be attached to budget proposals that may become law with little public scrutiny or debate.  In order to bring Congress to a close and get home for the holidays, Congress created an omnibus budget bill to resolve all outstanding budgetary issues.  This large piece of legislation included several unrelated proposals, including the Children's Internet Protection Act (CIPA).

The Children's Internet Protection Act requires that schools and libraries that receive specified federal funding certify that they have in place an Internet Safety Policy that includes monitoring the use of Internet access by children and implementation of technology that will filter out objectionable content.

The Omnibus budget along with CIPA were signed into law by the President on December 21, 2000. See Thomas. The ink had barely dried on the legislation before the ACLU announced that it would challenge the constitutionality of CIPA.  CIPA does permit expedited judicial review, but it also requires expedited regulatory implementation by the relevant federal agencies.
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CIPA in a Nutshell

CIPA requires that schools and libraries that receive specific federal funds must certify to the funding agency that they have in place an Internet Safety Policy.  Such a policy should use technology that blocks access to obscenity, child pornography, or material harmful to minors.  It may also include monitoring of children as they are online.  Congress also wants the Internet Safety Policy to address hacking, chat rooms, e-mail safety, disclosure of personal information concerning children, and unlawful activities of children online.  CIPA becomes effective on approximately April 21, 2001.

This Guide is designed to present a primer about how CIPA is designed to work.  The relevant agencies are expected to release regulations specifying the details of how schools and libraries comply.  See Regulatory Proceedings below. The presentation in this Guide is general only and is not specifically tailored to the unique circumstances of any school or library (ie., this is a general discussion, not legal advice).

Who Must Comply

• Schools and libraries that receive federal funds (must be a recipient, not an applicant)
• Used for Internet access
• From the FCC's e-rate program or (47 USC § 254 (h), § 254(l)) See 47 CFR 54.520.
• If a school or library does not receive e-rate funds, then
• Schools that receive funds under the Elementary and Secondary Education Act of 1965 ( 20 U.S.C. § 6801), (CIPA Sec. 1711) or
• Libraries that receive funds under Section 224 of the Museum and Library Services Act (20 U.S.C. § 9134(b)) (CIPA Sec. 1712).

Internet Safety Policy

An Internet Safety Policy is required to receive funding under all of the above programs.  As the process is virtually identical for all three programs, this FAQ will go over the e-rate certification process and note any differences.

E-Rate Recipients Only: Public Hearing

E-rate recipients hold at least one public hearing during which concerns over the policy can be vetted.  Schools  47 USC § 254(h)(5)(A)(iii), Libraries § 254(h)(6)(A)(iii).

Internet Safety Policy Content

The Policy must consider and include the following:

All

• With respect to adults and minors
• the operation of a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions that are—

(I) obscene;
(II) child pornography; or
(III) harmful to minors (with respect to minors only)

E-rate schools, minors 47 USC § 254(h)(5)(B)(i), E-rate schools, adults 47 USC § 254(h)(5)(C)(i); libraries, minors 47 USC § 254(h)(6)(B)(i); libraries, adults 47 USC § 254(h)(6)(C)(i); Schools under Education Act Sec. 3601(a)(1)(A)(i), Libraries under Museum and Libraries Act 20 U.S.C. 9134(f)(1)(A)(i).

E-rate schools only

• Monitoring the online activities of minors (monitoring applies only to e-rate for school) E-rate schools 47 USC § 254(h)(5)(B)(i),

E-rate only § 254(l)

• access by minors to inappropriate matter on the Internet and World Wide Web;
• the safety and security of minors when using electronic mail, chat rooms, and other forms of direct electronic communications;
• unauthorized access, including so-called `hacking', and other unlawful activities by minors online;
• unauthorized disclosure, use, and dissemination of personal identification information regarding minors; and
• measures designed to restrict minors' access to materials harmful to minors

47 USC § 254(l)(1)(A). See note in Certification Section about additional § 254(l) requirements.

• The Federal government shall not establish criteria for or review the determinations made by the local authorities.
• 47 USC 254(l)(2).

Definitions

So what is this stuff that we are not supposed to let the kiddies see?

“Obscenity” is relatively easy. This is material that is completely off the scale. Obscenity has never had constitutional protection and remains illegal under several laws, including, interestingly enough, the Communications Decency Act. It is also illegal under Department of Justice statutes. See 18 USC § 1460. According to the Supreme Court’s Miller test:

The test for obscenity is (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

It is this requirement that obscenity be judged by community standards that led Congress to require the local hearing. In addition, a key to the test is that the material must lack any value. So here is a pop test: would the Ken Starr Report to Congress on President Clinton, Monica Lewisnky and cigars fall within the definition of obscenity? (Answer: of course, as the Report lacked any serious political value.)

Child pornography, likewise, is illegal and not constitutionally protected. This is defined as visual depictions of sexually explicit conduct of minors. The specific definition is set forth in 18 USC § 2256. (Note: the Child Pornography Prevention Act has been declared unconstitutional.  This Act would have made not only actual images of children illegal but also artificial images of children - in other words computer generated images - illegal.  The Supreme Court has agreed to review this case).

Material that is “harmful to minors” is defined by CIPA essentially the same as obscenity, except with the addition that this judgment must be made “with respect to minors.” Thus, it is not just that it lacks political value generally, but it must lack political value with respect to minors.

See Definitions Education Act Sec. 3601(a)(5), Museum and Library Act 20 USC 9134(f)(7), E-rate 47 USC 254(h)(7).

Disabling Technology

An authorized individual may disabled the technology protection measures for adults in order to enable bona fide research or “other lawful purposes.”  See Definitions Education Act Sec. 3601(a)(3), Museum and Library Act 20 USC 9134(f)(3), E-rate 47 USC 254(h)(5)(D), 254(h)(6)(D).

Certification

• E-Rate:  See Children's Internet Protection Act (CIPA) and Form 486, Universal Service Administration Corporation (July 26, 2001).
• Schools and libraries using e-rate funds for Internet access must certify to the FCC that
• is enforcing an Internet Safety Policy under § 254(h).  E-rate schools, minors 47 USC § 254(h)(5)(B), E-rate schools, adults 47 USC § 254(h)(5)(C); libraries, minors 47 USC § 254(h)(6)(B)(i); libraries, adults 47 USC § 254(h)(6)(C)(i).
• Timing:  Certification must be made
• First Funding Year:  within 120 days of the beginning of the first program funding year following April 21 (the next funding year for e-rate starts July 1, 2001) of
• Compliance or
• it is undertaking such actions, including any necessary procurement procedures, to put in place an Internet safety policy and technology protection measures and will be in compliance.
• Subsequent Years:  Each subsequent funding year thereafter as a part of the application process.
• Second Funding Year  Certification of
• Compliance or
• Notify the FCC that state or local procurement rules or regulations or competitive bidding requirements prevent the making of the certification.  Such notice shall certify that the school or library will be brought into compliance before the start of the third program year after the effective date of this section in which the school or library is applying for funds under this title.
• 47 USC 254(h)(5)(E); 47 USC 254(h)(6)(E).
• it has adopted and implemented an Internet Safety Policy under § 254(l).  47 USC 254(h)(5)(A)(i)(II) and 47 USC 254(h)(6)(A)(i)(II)
• The additional requirements come from CIPA Sec. 1732 codified as § 254(l).  47 USC 254(h)(5)(A)(i)(II) and 47 USC 254(h)(6)(A)(i)(II) requires that schools and libraries certify adoption and implementation of an Internet Safety Policy under CIPA Sec. 1732 codified as 47 USC 254(l).  The trick is that 47 USC 254(h) has a specific timing and certification process while 47 USC 254(l) does not.  Non-compliance with either results in ineligibility but the procedure for compliance with one is specified where the procedure for the other is not.  This ambiguity will have to be resolved.
• USAC Forms "For the purpose of CIPA, certifications are made either on FCC Form 479 or FCC Form 486 depending on whether the Administrative Authority is also the Billed Entity:"
• Non E-rate:

• Schools not using e-rate, but receiving funds under Title III of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6801 et seq.) for Internet access must certify that it has in place and is enforcing an Internet Safety Policy.  Schools under Education Act Sec. 3601(a)(1)(A)(i),
• Timing:  Certification must be made
• First Funding Year:  As part of the application process for the next program funding year under this Act following the April 21 of
• Compliance or
• it is undertaking such actions, including any necessary procurement procedures, to put in place an Internet safety policy and technology protection measures and will be in compliance.
• Subsequent Years:  during each annual program application cycle under this Act
• Second Funding Year  Certification of
• Compliance or
• Notify to the Secretary that state or local procurement rules or regulations or competitive bidding requirements prevent the making of the certification.  Such notice shall certify that the school will be brought into compliance before the start of the third program year after the effective date of this section in which the school is applying for funds under this title.
• Education Act Sec. 3601(a)(2)(B)
• Libraries not using e-rate, but receiving funds under Section 224 of the Museum and Library Services Act (20 U.S.C. 9134(b)) for Internet access must certify that it has in place and is enforcing an Internet Safety Policy.  Libraries under Museum and Libraries Act 20 U.S.C. 9134(f)(1)(A)(i).
• Timing:  Certification must be made
• First Funding Year:  As part of the application process for the next program funding year under this Act following the April 21 of
• Compliance or
• it is undertaking such actions, including any necessary procurement procedures, to put in place an Internet safety policy and technology protection measures and will be in compliance.
• Subsequent Years:  during each annual program application cycle under this Act
• Second Funding Year  Certification of
• Compliance or
• Notify to the the Director of the Institute of Museum and Library Services that state or local procurement rules or regulations or competitive bidding requirements prevent the making of the certification.  Such notice shall certify that the school will be brought into compliance before the start of the third program year after the effective date of this section in which the school is applying for funds under this title.
• Libraries under Museum and Libraries Act 20 U.S.C. 9134(f)(4).
• IMLS: Update on the Childrens Internet Protection Act July 8, 2002
• Note that school libraries can apparently qualify for LSTA funds and must in that case comply with CIPA.

New Obligation (Fall 2008)

The Broadband Data Improvement Act Title II: Protecting Children in the 21st Century Act, passed in the fall of 2008, added a new educational requirement to CIPA: A school or library must certify that

`(iii) as part of its Internet safety policy is educating minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms and cyberbullying awareness and response.'

Failure to Comply

• Failure to comply with CIPA results in ineligibility for the funding program.
• In general, where it is found that a funded school or library is not in compliance, the funding agency shall cease funding and give notice to the school or library indicating it should be brought into compliance.  Libraries under Museum and Libraries Act 20 U.S.C. 9134(f)(5); Education Act Sec. 3601(a)(4)
• With e-rate only, where it is found that a funded school or library is not in compliance § 254(h) (not § 254(l) 47 USC 254(h)(5)(F)(ii); 254(h)(6)(F)(ii)), the school or library can be liable to reimburse the FCC for the funds for that funding year.  E-rate 47 USC 254(h)(5)(F); 254(h)(6)(F)

Links

• Universal Service Administrative Company CIPA FAQ
• FCC Children's Internet Protection Act

Federal Action

• H.CON.RES.88 : Expressing the sense of Congress that the Children's Internet Protection Act is constitutional as it applies to public libraries, House 3/21/03
• 10:00 a.m. in 2322 Rayburn House Office Building The Subcommittee on Telecommunications and the Internet has scheduled a hearing for Wednesday, April 4, 2001 at 10:00 a.m. in 2322 Rayburn House Office Building. This hearing will focus on "E-Rate and Filtering: a Review of the Children's Internet Protection Act." Witnesses will be by invitation only., Cong 4/04/01

Regulatory Proceedings

• Public Notice: The Commission released the Second Report and Order and Further Notice of Proposed Rulemaking (FCC 03-101) regarding the schools and libraries universal service support mechanism. The Order implements various streamlining measures, such as making voice mail an eligible service, clarifying the definition of "educational purposes," and debarring from the program applicants, service providers, and others that defraud the program. The FNPRM seeks comment on further improvements to the program. Released on 4/29/03. FCC 03-101, CC 02-6. Word
• FEDERAL-STATE JOINT BOARD ON UNIVERSAL SERVICE/CHILDREN'S INTERNET PROTECTION ACT. Adopted measures to ensure that our implementation of the Children's Internet Protection Act (CIPA) complies with the recent decision of the United States Supreme Court. (Dkt No. 96-45). Action by: the Commission. Adopted: 07/23/2003 by ORDER. (FCC No. 03-188). WCB, FCC 7/25/03
• Released: 06/30/2003. STATUS OF CIPA FILTERING RULES FOR LIBRARIES FOLLOWING SUPREME COURT DECISION. (DA No. 03-2117). (Dkt No 96-45). WCB. Contact: Jennifer Schneider at (202) 418-7400, TTY: (2020 418, FCC 6/30/03

Litigation

June 2003 US Supreme Court Upholds CIPA

• US Supreme Court Decision US v. American Library Association, No. 02-361 (Decided June 23, 2003)
  • "When the Government appropriates public funds to establish a program, it is entitled to broadly define that program's limits. Rust v. Sullivan, 500 U. S. 173, 194. As in Rust, the Government here is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purpose for which they are authorized: helping public libraries fulfill their traditional role of obtaining material of requisite and appropriate quality for educational and informational purposes. Especially because public libraries have traditionally excluded pornographic material from their other collections, Congress could reasonably impose a parallel limitation on its Internet assistance programs."
• Photographs from the Supreme Court by Declan

Note that this was a "facial challenge" to CIPA (That CIPA is unconstitutional on its face - there would be no constitutional application of the statute). This leaves room for a challenge to CIPA "as applied."
CIPA is a condition on federal funding, as opposed to a restriction on speech.
Libraries in general do not subscribe to pornography.
Adult users can disable the filters.

June 20, 2002 US DOJ Appeals District Court Decision to US Supreme Court.

May 31, 2002.  Pennsylvania District Declares CIPA Unconstitutional.   Court Decision  |  Statement of the USAC (concluding that the NCIPA still applies to libraries and must be complied with, and that CIPA still applies to schools) |

FCC Releases CIPA Order, USAC 7/3/02

FEDERAL-STATE JOINT BOARD ON UNIVERSAL SERVICE; CHILDREN'S INTERNET PROTECTION ACT. Adopted interim measures to ensure that our implementation of the Children's Internet Protection act (CIPA) complies with the recent decision issued by a three-judge panel in the United States District Court for the Eastern District of Pennsylvania. (Dkt No. 96-45). Action by: The Commission. Adopted: 06/28/2002 by ORDER. (FCC No. 02-196). WCB, FCC 7/3/02

See USAC July 1 statement implementing new FCC Order. June 28, 2002 (claiming that NCIPA still applies)

On March 20, 2001, the ACLU, the ALA, and a collection of other plaintiffs (see list of ACLU Plaintiffs) filed suit in the Federal Eastern District Court of Pennsylvania.  CIPA calls for expedited legal review.  According to Sec. 1741, any constitutional challenge to the CIPA will be heard by a 3 judge federal district court panel.  Any appeal of that decision shall be reviewable directly to the Supreme Court. CIPA Sec. 1741.  The named defendants are the United States, the Federal Communications Commission, (responsible for the e-rate program), and the Institute of Museum and Library Services.

ACLU Press Release Dec 18, 2000. ALA Press Release Jan 2001

ACLU Press Release 03/20/2001 | ACLU Complaint | ALA Press Release 02/20/2001| ALA Complaint |
| Family Research Council Press Release FRC to Defend Internet Porn Filtering Bill 3/20 | Statement Sen McCain Mar 20, 2001

See ACLU Press Release Dec 18, 2000; ALA Press Release Jan 2001.

Press Release: ACLU Responds to Confusion Over Library Blocking Software Law; Seeks December Trial Date in Legal Challenge  FOR IMMEDIATE RELEASE Wednesday, May 17, 2001
ALA Letter of April 18, 2001
ALA Letter of May 18, 2001. Clarifying compliance and deadlines.
May 14 Letter from USDOJ
May 16 Letter from ALA Legal Counsel on CIPA E-rate Clarification and Litigation Schedule

News

Companies Combine URL Filter, Proxy Blocking for CIPA Compliance, eWeek 4/3/2007

Libraries get a break on Net filters, CNET 7/25/03

US porn-filter law upheld, BBC 6/24/03

Court OKs anti-porn filters in libraries, CNN 6/24/03

Supreme Court OKs Net filters, CNET 6/24/03

A Ruling in Need of Filtering, Wash Post 6/24/03

Many libraries will skip grants to avoid using Net filters, Mercury 6/24/03

Silver Lining In Web Filter Decision, InternetNews 6/24/03

CIPA Porn Law Appeal, Internet News 2/14/03

CIPA to the Supremes MSNBC 11/12/02

Supreme Court to Hear Web Porn Case Wash Post 11/12/02

Library Net Filter Ruling Was Correct, USA Today 6/28/02

Bush: Bring Back Library Filters, WIRED 6/24/02

Government Appeals 'Net Filtering Ruling, Wash Post 6/20/02

Government Appeals 'Net Filtering Ruling, Wash Post 6/20/02

U.S. Asks High Court To Overturn Porn Ruling, AP 6/20/02

ITAA Hails Internet Filter Ruling, FCW 6/5/02

U.S. appeals porn ruling, USA Today 6/20/02

CIPA Internet Porn Law Tossed Out, Internet News 5/31/02

Library Net Porn Filters Shot Down, Register 5/31/02

Federal judges reject online porn law, MSNBC 5/31/02

Court overturns library filtering law, CNET 5/31/02

Net filtering law overturned, USA Today 5/31/02

Judges Strike Down Internet Porn Filters, Wash Tech 5/31/02

Court Won't Dismiss Net Porn Law Challenge, CNN 7/30/01

Court Won't Dismiss Internet Porn Law Challenge, Reuters 7/27/01

Judges weigh freedom of speech, child protection in Internet library suits, Nando 7/24/01

Timeline

Papers

• Potential legal challenges to the application of the Children's Internet Protection Act (CIPA) in public libraries:, First Monday 2/10/2004
• Steven Hinckley, Your Money or Your Speech: The Children's Internet Protection Act and the Congressional Assault on the First Amendment in Public Libraries, SSRN 6/24/03
• CIPA and PA212 by Laurie Taylor of the Office of the Michigan Information Network
• By Bob Bocher, Library Technology Consultant, Wisconsin Department of Public Instruction
• Presented at the June 2001 Merit Annual Meeting by Cynthia B. Faulhaber and Kathryn L. Ossian, principals in the firm of Miller, Canfield, Paddock and Stone, P.L.C

News

Judges Blast Library Filtering, WIRED 4/5/02

Judges weigh library Net filters, MSNBC 4/5/02

Judges end library Net porn trial on skeptical note, USA Today 4/5/02

Judges end porn trial on skeptical Note, CNN 4/5/02

Govt. Witnesses Wrap Up First Week Of Filtering Trial, Wash Tech 4/1/02

Librarians Speak At Web Filter Trial, ABC 3/27/02

Porn-Filter Trial Gets Raunchy, Wired 3/27/02

Expert: Porn filters bound to fail, MSNBC 3/27/02

Net filters fail the children, BBC 3/27/02

Librarians argue against Net filtering, CNET 3/27/02

Net Filtering Challenge Gets Day In Court, USA Today 3/25/02

Law Limiting Internet in Libraries Challenged, NYT 3/25/02

Internet Filtering Technology Put to Legal Test, Newsfactor 3/25/02

Court to hear Net filtering challenge, CNET 3/25/02

Effectiveness of Internet Filtering Software Products, ABA 3/27/02

San Francisco Libraries Defy Internet Filtering Law, Washtech 10/5/01

FCC: School, Library Filters By July 2002, Newsbytes 4/7/01

Feds Post Indecent Material, Wired 4/7/01

EFF Plans Nationwide Protest Of Blocking Law, Newsbytes 4/2/01

Groups To File Suit Over Web-Filtering Law, Newsbytes 3/19/01

Critics: Internet Filters Censor Speech, NYT 3/19/01

Lawsuits slam Net filtering efforts, CNET 3/21/01

Suits expected to fight Net filtering law, CNET 3/21/01

Curbs on Web Access Face Attack, Washtech 3/21/01

Library Smut Snit Heats Up, Wired 3/21/01

Libraries: Filter Out Filters, Wired 3/21/01

Parents The Best Web Filters For Children, CSM 3/23/01

Law requiring Web filters at schools, libraries faces challenges, Nando 3/16/01

Congress' Censorware Boondoggle by Jonathan Wallace Ethical Spectacle

Advocates take both sides of Net filtering law, CNET 2/23/01

Web filters far from perfect, Consumer Reports says, Nando 2/15/01

Net filters strain to block sites, CNET 2/15/01

Consumer Reports on Internet Filters, CR 2/15/01

Report: Net filters don't work, USAToday 2/15/01

Filtering Software Is Not Up to Snuff, IN 2/15/01

Civil Liberties Groups Urge FCC To Stay Out Of Net Filtering, Washtech 2/16/01

Brief: Library association plans suit over filtering Jan 19 nwfusion

Congress Passes Net Filtering Bill Dec 20 usatoday

ACLU Fights Filtering Software Dec 20 97

EFF McCain-Istook-Santorum-Pickering Revised Draft Internet Filter Amendment to the 2001 Labor-HHS-Education Appropriations Bill, H. R. 4577

Group unveils program to disable Web filters Dec 18 cnet

ACLU Promises Legal Challenge as Congress Adopts Bill Imposing Internet Blocking in Libraries Dec 18 aclu

New Software Blocks Online Filtering Programs Dec 18 washtech

The Childrens' Internet Protection Act  Filtering the Future?: Software Filters, Porn, PICS, and the Internet Content Conundrum  by Christopher D. Hunter

Senate OKs two plans to monitor Internet activity in schools TechServer 6/28

McCain Press Release COMMITTEE CLEARS CHILDREN'S INTERNET PROTECTION ACT 6/99
ACLU Calls for 'Reality Check,' s Another Internet Censorship Bill Is Introduced 3/99
Senators introduce Children's Internet Protection Act Freedom Forum 1/26/99